KAMBURUGAMUWA PIYANANDA TERUNNANSE, Appellant, and UYANGODA SUMANAJOTHI TERUNNAN

041-NLR-NLR-V-66-KAMBURUGAMUWA-PIYANANDA-TERUNNANSE-Appellant-and-UYANGODA-SUMANAJOTHI-TERUNNAN.pdf


178 TAMBIAH, J.—Kambumgamuwa Piyananda Terunnanse, v. Uyangoda
Sumanajothi Terunnanse
1963Present: Tambiab, J., and Abeyesundere, J.
KAMBUR0GAMUWA PIYANANDA TERUNNANSE, Appellant, andUYANGODA SUMANAJOTHI TERUNNANSE, Respondent
S. G. 638/60—D.G. Matara, 676
Buddhist ecclesiastical law—Incumbency of vihare—Succession originally by severalpupils—Applicability thereafter of rule sissyanu sisya paramparawa—Burdenof proof.
In considering the rule of succession relating to the incumbency of aBuddhist temple, or vihare, the sissyanu sisya paramparawa rule is presumedto apply, unless the contrary be shown. Any rule of succession other than thesissyanu sisya paramparawa is an exception to the general rule, and the burdenof proving such a rule rests on the party who alleges it.
Plaintiff sued for a declaration that he was the viharadhipathi of a certainBuddhist temple and that the defendant should be ejected from the premises.He alleged that the succession to the office of viharadhipathi of this templewas not governed by the sissyanu sisya paramparawa rule but that, by usage,it took place according to the order of seniority of upasampatha ordinationof each generation of priests.
The evidence showed that the original viharadhipathi devised by last willof 26th July 1839 the vihare and its temporalities to all his pupils to be sharedequally by them and that, accordingly, after his death, his pupils succeededin turn as incumbents, according to their seniority. There was nothing,however, apart from some unreliable self-serving documents, to suggest thatthe rule of succession relied on by the plaintiff was ever followed thereafterand that the rule of sissyanu sisya paramparawa was not followed.
Held, that the finding that the original pupils succeeded in turn to theincumbency was not inconsistent with the applicability of the sissyanu sisya.paramparawa rule.
Appeal from a judgment of the District Court, Matara.
H. V. Perera, Q.G., with H. A. Koattegoda and N. R. M. Daluioatte,for the Defendant-Appellant.
H. W. Jayewardene, Q.C., with W. D. Gunasekera and L. C. Senevi-ratne, for the Plaintiff-Respondent.
Gur. adv. vult.
December 20, 1963. Tajmbiah, J.—
The plaintiff brought this action for a declaration that he is the vihara-dipathy of a temple called Godakanda Samudratheera Aramaya inKamburugamuwa and prayed for an ejectment of the defendant who,he alleged, was in wrongful possession of the said vihare.
TAMBIAH, J.—Kamburugamuiva Piyananda Terunnanse v. Uyangoda 179
Sumanajolhi Terunnanss
The plaintiff, in his evidence, stated that the original viharadipathyof the said Vihare was one Ahangama Dhammananda Thero who, bylast will No. 158 of 26.7.1838, marked P9, devised all his temporalitiesto his six pupils, namely,
Garanduwe Sangharakkhitha
Aluthwatte Jothirathana
. (3) Weragampita Seeladhara
Ahangama Seelarathana
Kamburugamuwa Rathanasara
Mirissa Rathanapala.
The plaintiff’s case is that this temple had a peculiar rule of succession,different from the sissyanu sisya paramparawa and that the successionto the office of viharadipathy of this temple took place according to theorder of seniority of vpasampatha ordination of each generation of priests.In the course of his evidence, the plaintiff said that according to thisrule, a priest, who is the most senior by higher ordination out of thepupils of any particular tutor, at any particular time, succeeded to theincumbency.
The defendant, who is in possession of the temple, claimed to be theviharadipathy of the temple by the rule of sissyanu sisya paramparawafrom Seeladhara, the pupil of Ahangama Dhammananda.
According to the plaintiff, after the death of Ahangama Dhammananda,Sangharakkhitha, Jothirathana, Seeladhara and Rathanasara succeededin turn as incumbents of this vihare in the order set out.
Ahangama Seelarathana left the vihare; Mirissa Rathanapala died beforeRathanasara and, therefore, these two priests did not function asincumbents. After the death of Rathanasara, the plaintiff’s case isthat among the second generation of priests, Walgama Dhammananda,the pupil of Sangharakkhitha, Polhene Maha Dharmarathana, the pupilof Rathanasara, Polhene Punch! Dharmarathana, the pupil of Jothi-rathana and Walgama Sirisunanda, the pupil of Seeladhara, functionedas incumbents in the order set out, according to seniority.
After Walgama Sirisunanda, who died in 1954, the plaintiff claimsto be the incumbent of the temple as the most senior among the thirdgeneration of priests.
The learned District Judge, in giving judgment for the plaintiff,summed up his conclusions as follows :—
“ To sum up my conclusions it appears to me that the Bikkhu whosucceeded as Viharadipathy of this temple did not succeed in theusual manner of sissyanu sisya paramparawa, but quite in a differentway. Ahangama Dhammananda, the original Viharadipathy, appointedsix pupils, to own and possess this temple equally and gave specialdirections to his own four pupils sisya puthrayo (pupillary sons).Further it is evident from the documents produced in this case thatat least the 4 original pupils who were the devisees in P9 became
180TAMBIATT, J.—Kamburugamuwa Piyananda Terunnanse v. XJyangoda
Sumanajothi Terunnanse
Viharadipathys, viz : Garanduwe Sangharakkhitha, Aluth watte Jothi-rathana, Weragampita Seeladhara and Kamburugamuwa Kathanasara.Thereafter their pupils succeeded as Viharadipathys. It is notcorrect to say that the senior pupil of one of the originalpupils Ahangama Dhammananda succeeded as Viharadipathy. Ithas taken place according to the seniority of ordination. BuddhistDhamrua recognises seniority by ordination though it has come tomean in our law that robing confers seniority on a Buddhist Monk. ”
Although the finding of facts by a judge who has heard witnesses, isnormally entitled to weight and it is the settled principle of this Courtnot to disturb such a finding, I am of the view that in the instant case,the learned District Judge has misdirected himself on the law and hasdrawn incorrect inferences from the facts. After a careful considerationof the oral and documentary evidence-led in the case, and the authoritiescited before us, I am of the view that the plaintiff has failed to provethe particular rule of succession alleged by him. He has not shownthat the sissyanu sisya paramparawa rule, which is presumed to applyin Ceylon as the law of succession, unless the contrary be shown, did notapply to this temple. It is a settled rule of law that any rule of succes-sion, other than the sissyanu sisya paramparawa, has to be regarded asan exception to the general rule, and the burden of proving such a rulerests on the party who seeks to establish any right under it (vide EriminneUnnanse v. Senabowe Unnanse x; Dantura Unnanse v. The Governmentof Ceylon 2).,
According to the pupillary succession known as sissyanu sisya param-parawa, after the death of the chief incumbent of a Buddhist temple,his eldest pupil succeeds him unless he had deserted his tutor or sufferedwhat may be termed as ‘ecclesiastical death’, such as being disrobed etc.This rule, which has had a flourished existence for over two hundredyears, has undergone known deviations (vide Okandeyaye WangeesaThera v. Mulgirigala Sunanda Thera3).
The early decisions of this Court recognised the right of the founderto appoint all his pupils to the incumbency. When the founder of avihare appoints several pupils to succeed him, they all become entitledto the temple; one of them is elected as superior and the others partici-pate in the benefits (vide Dantura TJnnanse v. Government of Ceylon(supra)) and this rule received the approval of Bertram C.J., inSaranankara Unnanse v. Indajoti Unnanse 4 and several other cases(compare Dewandra Unnanse v. Sumangala Terunnanse5; PiyaratneUnnanse v. Medankara Terunnanse 8).
Although the original rule as postulated by the Malwatte priests, isthat it is only the founder priest of a vihare who could appoint a numberof pupils to succeed him, this right appears to have been extended to
1 (1832) 1869-1871 Vanderstraaten Reports, Appendix D.a (Ibid).
8 8.C. 520/D.C- Tae.galle 631. S.C. Minnies of 14th September 1962. [65 N.L.R. 388].4 (1918) 20 A'. L. R. 398.6 (1927) 29 N. L. R. 415.
8 (1931) 32 N. L. R. 271.
TAMBIAH, J.—K amburugamuwa Piyanavda Terunnanse v. XJyangoda 181
Sumanajothi Terunriavse
any incumbent. Jayewardene A.J., in the case of Gunananda Unnansev. Uewarakkita Unnansex, in discussing the right of an incumbent toappoint his pupil, summarised the rule as follows (vide 26 N. L. R.at page 275):
“He can appoint by will or deed more than one pupil to succeedhim ; in such a case these pupils, although called jointly, succeed inrotation according to seniority. The pupil who succeeds last canappoint one of his pupils, and, in the absence of such an appointment,his senior pupil will succeed him to the exclusion of the pupils of theprevious incumbents.” (vide also Piyaratne Unnanse v. MedankaraTerunna?ise (supra).)
Applying these principles to the facts of the instant case, even ifone accepts the contention of the respondent’s counsel that after thedeath of Ahangama Dhammananda, Sangharakbitha, Jothirathana,Seeladhara and Rathanasara succeeded to the incumbency by way ofrotation, in the order mentioned, there is nothing to suggest that therule of sissyanu sisya paramparawa was not followed.
By deed P9 of 1838, Ahangama Dhammananda, after reciting that hedesires to dispose of the movable and immovable property which he gotfrom his tutor and by his own exertions, devised the Vihare and itstemporalities to his six pupils to be shared equally by them. Since aBuddhist temple is indivisible, by the rules of succession set out earlier,its pupils would have become incumbents according to their seniorityand when Rathanasara, the last of the pupils of Dhammananda, died,his eldest pupil would have succeeded to the incumbency. There isevidence in this case that Polhene Maha Dharmarathana, th.3 eldestpupil of Rathanasara, succeeded to this temple as incumbent.
An attempt made by Sangharakhitha to nominate his pupil, WalgamaDhammananda, to succeed him by granting one sixth share of the temple"by last will, PI8, shows that Sangharakhitha believed in the sissyanu sisyaparamparawa rule of succession. This attempt again negatives theusage relied on by the plaintiff that another form of succession appliedto this temple.
The plaintiff, who relied on a pedigree in which he set out the order ofsuccession to the incumbency of this temple, was compelled to admitthat apart from what he had seen in the documents, he does not knowanything personally. He also admitted that he had not seen the priests,and although he claims to know the paramparawa, bis knowledge of thepedigree is based on the inferences he had drawn from the documentsproduced in the case. It is common ground that Seeladhara, at somestage, officiated as the viharadipathy.
In order to prove that Seelarathana* succeeded to the incumbencyafter Seeladhara, the plaintiff relied on two indentures of leases P21 of1839, and P38 of 1879, purported to have been executed by Rathanasaraas chief incumbent of Godakanda. An assertion in an indenture of lease
» (1924) 26 N. L. R. 257.
182 TAMBIAH, J.—Kamburugamuwa Piyananda Terunnanse v. Uyangoda
Sumanajothi Terunnanse
to the effect that the lessor is the chief incumbent carries little weightin proving that he was the de jure incumbent of a particular temple.Such self-serving documents are of little evidential value and this pointis illustrated by the plaintiff’s own evidence.
The plaintiff has stated, in the course of his evidence, that he succeededto the incumbency only in 1954, after the death of Walgama Wimalasiri,according to the rule of succession he relied on in this case. It is curious,however, that long before the year 1954, in a number of documentsexecuted by him, be has described himself as the chief incumbent ofthis temple. In P37 of 31.3.1940, a document which deals with theredeeming of a debt, the plaintiff calls himself the chief controllingpriest of this temple. In P29, which purports to be an indenture of leaseexecuted by the plaintiff in January 1942, he calls himself sthavira ofSamudratheerarama. In P30, a lease purported to have been executedin October 1941, he calls himself sthavira, the chief incumbent of thistemple. In P31, dated 5.10.1942, P32, dated 2.1.1948, P34 of 6.1.1949,he calls himself the chief incumbent of the vihare. If the particularrule of succession he relied on operated, he could not have been theincumbent of the vihare till 1954. The execution of these documentsshows that the plaintiff himself did not believe in the peculiar rule ofsuccession which he asserted in this case. The plaintiff was apparentlytrying to create title in himself by alleging that he was chief incumbentof the temple.
The conduct of the plaintiff shows how unreliable self-serving state-ments prove to be in indentures of leases or other documents executedby a person. Such documents have very little evidential value for thepurpose of proving that the persons mentioned as chief incumbents werede jure viharadipathys of the temples concerned.
A further examination of the plaintiff’s case shows that the rule ofsuccession relied on by the plaintiff was never followed. According tothe plaintiff, before Walgama Wimalasiri succeeded to this incumbency,Walgama Siri Sunanda was the chief incumbent as he was the mostsenior pupil in the second generation of priests. But D3, a documentproduced by the defendant, conclusively shows that Sunanda did notsucceed as chief incumbent of this temple according to the rule of succes-sion relied on by the plaintiff but was appointed by the chief priest of thesect, with the approval of the Sangha, to loot after the temple as acaretaker in order to prevent the temple falling into ruins. The plaintiff’scase is that after the death of Walgama Siri Sunanda, Walgama Wimala-siri succeeded as chief incumbent, according to the rule of successionrelied on by him.
By document D4, the Maha Sanghaya of Siri Dharmarakshita Vansaya,who gathered at the Godakanda Vihare on 6.3.1940, with the consentof all the pupils and Dayakas of the vihare, appointed Walgama Wimala-siri sthavira as chief incumbent of the said temple. This documentshows that the rule of succession relied on by the plaintiff was not followed,
TAMBIAH, J.—Kamburugamuwa Piyananda Terunnanse v- Vyangoda 183
Sumanajothi Terunnanee
but Walgama Wimalasiri was elected as the chief incumbent by theMaha Sangha. These two instances are sufficient to show that thepeculiar rule of succession alleged by the plaintiff was never followed.
To prove that Polhene Punchi Dhammaratane was the chief incumbentbefore Sunanda, the plaintiff relied on the documents P2, P4, P7 and- P8,the oral evidence of one Mr. Weerasooriya, who described himself as apoet, and P2, a booh of poems entitled “Kavya Rasaya”, containingsome stanzas made by Polhene Siri Dhammaratana “Maha sthaviraViharadipathy ” of this temple.
In P7, Polhene Dhammaratana has signed as a witness where hedescribed himself as Godakande Samudratheeramadipathi, P8 is saidto be a funeral card which is addressed to Godakanda SamudratheeraVihara Adhipathi …. by some person in the year 1912.There is no evidence to show whether the person who is alleged to havesent this card was alive or not and it is not clear whether it came fromproper custody. These documents are of little probative value inestablishing that Polhene Punchi Dhammaratana was the de jureviharadipathy of this temple.
In P4, which is the plaintiff’s declaration under the Buddhist Tempora-lities Ordinance, his robing tutor is mentioned as Polhena DhammaratanaSthavira Viharadipathi of Godakanda. The Mahanayake Thero of the^Nikaya has signed as a witness but the document does not show thatPolhene Punchi Dhammaratana functioned as the de jure incumbentof the temple. It is sometimes the practice to describe the de factoincumbent as the chief incumbent of a particular temple. Mr. Weera-sooriya, who was called by the plaintiff, had to admit that he metPolhene Punchi Dhammaratana only once and his knowledge thatPolhene Dhammaratana functioned as viharadipathy is derived fromhearsay.
The documentary evidence in this case shows that after the deathof the original pupil, Ahangama Dhammananda, disputes and dissensionshad arisen among the priests regarding the management of this temple.In certain instances, Court intervention was sought by the priests of theNikaya. The document P24, relied on by the plaintiff to prove therule of succession, shows that the sect to which the plaintiff belongs,representing the Sangha, appointed Siri Sunanda to look after the templeand its temporalities and as Siri Sunanda had leased some propertiesof the temple and as other priests had also leased other propertiesof the same temple,,the Court cancelled the lease granted by Sunandaand upheld the leases made by the other priests. An inquiry appearsto have been held by the Secretary by an order of Court of the DistrictJudge of Matara and Polhene Dhammaratana Thero, who was residingat this temple, was accepted as incumbent of the said temple and theSanghika property. This document shows that Polhene Dhammaratanawho was also referred to as Polhene Maha Dhammaratane, did not becomeviharadipathy of the temple according to the rule of succession relied
184 TAMBIAH, J.—Rambumgamuwa Piyananda Terunnanse v. Uyangoda
Suman&jolhi Terunnaase
on by the plaintiff. The plaintiff has not called the Mahanayake Theroof his sect or any other prominent priest belonging to this Nikaya toprove the rule of succession relied on by him according to usage.
In considering the rule of succession of an incumbent of a Buddhisttemple, or vihare, the terms of dedication must govern the rules ofsuccession (vide Sangharatana Unnanse v. Weerasekera 1; DharmapalaZJnnanse v. Medagama Subana Unnanse 2). In the absence of any rule laiddown by the founder; or where the terms of the original dedicationcannot be proved either by direct evidence or by usage, then itmust be presumed that the rule of sissyanu sisya paramparawa applies,unless it can be established that the succession is governed by. sivuruparamparawa (vide Sumanatissa v. Gunaratne3). If any other rule ofsuccession is shown by usage, it may be accepted as evidence of theoriginal terms of dedication by the founder. Under our law, it will bepresumed that the rule of succession applicable to Buddhist templesis the sissyanu sisya paramparawa. The onus of proving any otherrule of succession is on the person alleging it. When a person allegesthat any other rule of succession other than the aforesaid two rules of•succession applies to a temple, the burden is on him to prove that such arule had been adapted by long usage. Such usage must be certain,continuous and invariable to warrant the conclusion that it .was laiddown by the founder.
The counsel for the respondent also relied on the unreported case ofOkandeyaye Wangeesa Thera v. M ulgirigala Sunanda Thera (supra)and urged that the facts of that case were on all fours with the facts ofthe instant case. In that case, however, it was held that it was “ indis-putably established by evidence ’ ’ that the rule of sissyanu sisya paramparawa did not apply and the traditional mode of appointment of anincumbent of that temple was for the Sangha Sabha to make such anappointment.
The learned District Judge’s finding that four of the original pupilsof Ahangama Dhammananda succeeded in rotation to the incumbencyis consistent with the rule of sissyanu sisya paramparawa. After theoriginal pupils of Dhammananda died, there has been no consistentrule of succession proved by the plaintiff to establish his claim. Thelearned District Judge, in entering upon the period subsequent to thedemise of the original pupils of Ahangama Dhammananda, remarkedthat he was entering “ upon the troublous phase of this successionIn dealing with this period, he was no more sailing in smooth andplacid waters with ripples and eddies but was embarking on a hazardousjourney where he has to encounter shoals and sandbanks. The plaintiffhas failed to prove the rule of succession relied on by him and hisaction must necessarily fail.
1 (1903) 6 N. L. R. 313.3 (1900) 2 Gurr. Law Rep. 83.
8 (1937) 39 N. L. R. 251.
Cornelia v. Inspector of Police, Kamburupiliya
185
It is unnecessary for me to discuss the title of the defendant in thiscase, since he is in possession and the learned District Judge has notdeclared that he is the lawful incumbent.
The counsel for the respondent sought an escape by submitting thateven if the rule of sissyanu sisya paramparawa applied, neverthe-less the plaintiff was the rightful incumbent of the temple. This argu-ment, which was not even adumbrated in the court of first instance,cannot be accepted. He submitted that after the death of Rathanasara,Polhene Punchi Dhammarathana would have stepped into the shoes ofRathanapala and the plaintiff, being the pupil of Punchi Dhammaratana,would have succeeded as incumbent. But in view of the modificationof the rule of sissydnu sisya paramparawa enunciated earlier, Rathana-sara would have been succeeded by his pupil Polhene Maha Dhammara-tana and after the latter’s death, his senior pupil would have succeededhim. There is no evidence in this case that Polhene Maha Dhamma-ratana had no pupils.
' The counsel for the respondent also ventured to submit that theplaintiff could also claim his rights through Jothixathana. But, inview of the last will P9, executed by Ahangama Dhammaratana, Jothi-rathana would have been succeeded by Seeladhara. For these reasons,I set aside the order of the learned District Judge and dismiss the plaintiff’saction with costs. The defendant is entitled to the costs of appeal.
Abeyesttndere, J.—T agree.
Appeal allowed.